Patna High Court · 2012
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.1008 of 2013 ====================================================== 1. Jagdish Sharma S/O Late Kamta Sharma Resident Of Village- Kaura, P.S.- Ghosi, District- Jehanabad. At Present Member Of Parliament (Lok Sabha) And Resident Of 22-Minabag, New Delhi Versus .... .... Petitioner/s 1. The State Of Bihar 2. Rana Pratap Yadav S/O Late Bali Rana Yadav Resident Of Village- Sukhiyama, P.S.- Hulasganj, District- Jehanabad .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ramakant Sharma, Sr. Adv. Mr. L.K.Sharma, Adv. Mr. Arun Kumar Pandey, Adv. For the Opposite Party/s : M/s. Raj Giri Singh, Adv., Sarvadeo Singh and Vijay Prakash Singh, Advs. For the State : Mr. Jharkhandi Upadhyay, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 5 19-06-2013 Heard learned counsel for the petitioner, for the O.P.No.2 and the State. In this case, petitioner is challenging the order dated 4th December 2012 passed by the Judicial Magistrate, 1st Class, Jehanabad in Sessions Trial No. 1304 of 2012, arising out of Complaint Case No. 899 of 2008 for the offences u/s 323, 341, 504, 365 and 384/34 IPC. The complainant lodged the complaint case on 25th October 2008 making allegation that while he was going to his place, after attending Doctor, certain unknown persons intercepted 2
Facts
Patna High Court Cr.Misc. No.1008 of 2013 (5) dt.19-06-2013 2 / 5 and brought him to the Police Station and there they disclosed that they were Police Personnel where he was badly assaulted and wrongly made accused in a case relating to Arms Act and forcibly obtained his signature giving recital that arms were recovered from his possession. The reason for implicating the petitioner has been stated in the complaint petition that in the Janta Darwar, complainant was made against the Police Personnel and against local MLA. From the record it appears that an FIR was lodged against the Rana Pratap :Yadav (O.P.No.2) on 19th October 2009 as Ghosi P.S.Case No. 242 of 2008 where allegation has been made that while the Police was on patrolling, at about 16:30 hours on 19th October 2008 saw a person riding motor-cycle was coming, was given signal to stop but in stead, he tried to escape, he was surrounded and caught, on search country made pistol with live cartridges were recovered from his possession. Counsel for the petitioner submits that it is out and out a malicious prosecution as the petitioner remained MLA from 1977 and at present he is member of the Parliament. The complainant being president of RJD at Block level, very active in politics, must be knowing in view of the fact that he had been continuously elected for such a long period Admittedly he 3 Patna High Court Cr.Misc. No.1008 of 2013 (5) dt.19-06-2013 3 / 5 had lodged the complaint in the Janta Darwar against the complainant itself shows maliciousness of complainant against the petitioner. The attending facts and circumstances would show the present criminal prosecution is attended with mala fide with ulterior motive to wreck vengeance and with a view to spite him due to private and personal grudge. He further submits on reading of the complaint petition it does not disclose that he was present at the alleged place of occurrence only said the apprehension of implication in criminal case due to political reasons. Even if all the facts are treated to be true, no offence is made out against the petitioner. He further submitted that the facts mentioned in the complaint petition are inherently absurd and improbable as no reasonable person will believe the fact mentioned in the complaint petition. Counsel for the petitioner has relied on the following decisions: AIR 1992 SC 604 (State of Haryana v. Bhajan Lal) 2013(2) PLJR 52 (SC) and (2012)9 SCC 460 ) Amit Kapoor v. Ramesh Chander). Counsel for the O.P. has vehemently opposed the submission of the counsel for the petitioner and submitted that at the stage of cognizance, court was required to examine the 4 Patna High Court Cr.Misc. No.1008 of 2013 (5) dt.19-06-2013 4 / 5 complaint petition, including the statement made on oath and other materials brought before it for consideration. He further submitted that for taking cognizance, the court was to see only the prima facie case against the petitioner and not required to examine facts meticulously and in the complaint petition it has been specifically mentioned that petitioner was in connivance of with the Police falsely implicated in Arms Act case and so much so that he was brutally assaulted at the Police Station. He has further submitted that in other cases, at the instance of petitioner was made an accused but has been acquitted. It was further submitted that as per Hon’ble Supreme Court, the inherent jurisdiction should be exercised very sparingly, and power cannot be exercised to stifle the genuine proceeding somuch so petitioner has remedy at the stage of framing of charge. Having considered the rival contention of the parties, it is an undisputed proposition of law that at the stage of
Legal Reasoning
taking cognizance, the court has to form an opinion of prima facie case. The Court may exercise the power under inherent jurisdiction when attending circumstances show malicious prosecution the statement made in the complaint petition is so absurd that no reasonable person will believe the story and facts disclosed in complaint petition does not constitute criminal 5 Patna High Court Cr.Misc. No.1008 of 2013 (5) dt.19-06-2013 5 / 5 offence, but at the same time, caution has been given by the Hon’ble Supreme Court inherent power be exercised sparingly, not as tool to stifle the legitimate prosecution. In the present case, allegation has been made against the petitioner in the complaint petition of implicating him falsely and the Police in connivance assaulted the complainant. The complainant as well as other witnesses have named this petitioner to be a party to the whole incident. Of course a case has been lodged against the opposite party under the Arms Act that does not mean no prima facie case is made out against the petitioner as meticulous examination of facts at the stage of taking cognizance is not permissible in law. In this view of the mater, this Court does not find any error in the order impugned. This petition is accordingly dismissed. However, liberty is given to the petitioner to raise all the points at the appropriate stage. If the Court below would come to a finding of false malicious and vexatious prosecution, in that event the court will have the liberty to impose heavy cost against the complainant of this case. Jay/- (Shivaji Pandey, J)